Ingrid Wuerth, Professor of law at Vanderbilt Law School and friend of Letters Blogatory (you can follow her at @WuerthIngrid on Twitter), has an important new forthcoming paper on foreign states’ status as “persons” under the Due Process Clause of the Fifth Amendment. I’m very happy that she’s previewing her paper here at Letters Blogatory. The basic claim is that foreign states should be treated as persons under the Fifth Amendment, and that even if the FSIA purports to give the courts personal jurisdiction in any FSIA case in which an exception to immunity does not apply, the courts must still do a constitutional analysis. There are some claims, she writes, where a foreign state probably is not subject to personal jurisdiction, e.g., terrorism claims. Congratulations to Ingrid on an interesting paper, and many thanks for posting on it here!

The Foreign Sovereign Immunities Act (FSIA) provides immunity to foreign states from lawsuits in the United States, with limited exceptions. If an exception applies, the statute gives federal courts both subject matter jurisdiction (28 U.S.C. § 1330(a)) and personal jurisdiction (28 U.S.C. § 1330(b)). The FSIA’s protections are extensive and generally allows suits to go forward against foreign states only if they are based upon conduct with a connection to the United States. The nexus required by the statute usually meets or exceeds the “minimum contacts” test developed by the Supreme Court under the Fourteenth Amendment, as applied to the entire United States under the Fifth Amendment. In some cases, however, especially ones involving terrorism or arbitration, the statute permits a lawsuit to go forward in which the relevant conduct has little connection the United States. (more…)